Spinning Obama’s Supreme Court “Gaffe”

Obama, during a joint press conference Monday with the leaders of Canada and Mexico, said he’s “confident” the law will be upheld, but cautioned the “unelected” court against reaching any other conclusion. In doing so, Obama invoked what he described as conservative concerns about judicial activism.

But Sen. Orrin Hatch, R-Utah, top Republican on the Senate Finance Committee, called it a “fantasy” to think “every law you like is constitutional and every Supreme Court decision you don’t is ‘activist.'”

“Judicial activism or restraint is not measured by which side wins but by whether the Court correctly applied the law,” he said.

The president’s challenge to the high court drew widespread attention, on the eve of the Republican presidential candidates’ next round of primaries — Wisconsin, Maryland and the District of Columbia are voting Tuesday. All the candidates oppose the health care law, though front-runner Mitt Romney has come under fire for his role in passing one with similar provisions while governor of Massachusetts.

Romney, who describes the federal law as an overreach, also slammed Obama for his Supreme Court comments on Tuesday.

Romney, in an interview on Fox News, said an activist court is one that “departs” from the Constitution and legislates from the bench. In this case, he said, the judges simply are weighing whether a law is constitutional.

“That will not be an activist court — that will be a court following the Constitution,” Romney said.

Now, the Obama Administration is spinning faster the turnstile at Disney World.

White House press secretary Jay Carney tells the press corps that President Obama’s attack on the Supreme Court was misunderstood because he was speaking in “shorthand” since he is a former professor of law.

Henry: The president is a former constitutional law professor. One of his professors is Laurence Tribe. He now says, in his words, the president “obviously misspoke earlier this week”, quote “he didn’t say what he meant and having said that in order to avoid misleading anyone, he had to clarify it.” I thought yesterday you were saying repeatedly that he did not misspeak. What do you make of the president’s former law professor saying he did?

Carney: The premise of your question suggests that the president of the United States in the comments he made Monday, did not believe in the constitutionality of legislation, which is a preposterous premise and I know you don’t believe that.

Henry: Except this is from Laurence Tribe, who knows a lot more than you and I about constitutional law.

Carney: What I acknowledged yesterday is that speaking on Monday the president was not clearly understood by some people because he is a law professor, he spoke in shorthand.

Former Obama Law Student Thom Lambert wrote the following article, My Professor, My Judge, and the Doctrine of Judicial Review, which was posted on foxnews.com:

Imagine if you picked up your morning paper to read that one of your astronomy professors had publicly questioned whether the earth, in fact, revolves around the sun. Or suppose that one of your economics professors was quoted as saying that consumers would purchase more gasoline if the price would simply rise. Or maybe your high school math teacher was publicly insisting that 2 + 2 = 5. You’d be a little embarrassed, right? You’d worry that your colleagues and friends might begin to question your astronomical, economic, or mathematical literacy.

Now you know how I felt this morning when I read in the Wall Street Journal that my own constitutional law professor had stated that it would be “an unprecedented, extraordinary step” for the Supreme Court to “overturn[] a law [i.e., the Affordable Care Act] that was passed by a strong majority of a democratically elected Congress.” Putting aside the “strong majority” nonsense (the deeply unpopular Affordable Care Act got through the Senate with the minimum number of votes needed to survive a filibuster and passed 219-212 in the House), saying that it would be “unprecedented” and “extraordinary” for the Supreme Court to strike down a law that violates the Constitution is like saying that Kansas City is the capital of Kansas. Thus, a Wall Street Journal editorial queried this about the President who “famously taught constitutional law at the University of Chicago”: “[D]id he somehow not teach the historic case of Marbury v. Madison?”

I actually know the answer to that question. It’s no (well, technically yes…he didn’t). President Obama taught “Con Law III” at Chicago. Judicial review, federalism, the separation of powers — the old “structural Constitution” stuff — is covered in “Con Law I” (or at least it was when I was a student). Con Law III covers the Fourteenth Amendment.

Okay. So how do Obama’s Law Professors feel about his shorthand? One of them seems to be spinning as hard as the Administration.

President Obama’s former law-school professor said yesterday the president “obviously misspoke” when he challenged the authority of the US Supreme Court to overturn his historic health-care law.

“He didn’t say what he meant. . . and having said that, in order to avoid misleading anyone, he had to clarify it,” Harvard Professor Laurence Tribe told The Wall Street Journal.

Tribe, who called Obama one of his best students, tried to downplay the president’s remarks by insisting everyone already knows he wants the law to survive.

“I don’t think anything was gained by his making these comments and I don’t think any harm was done, except by public confusion,” Tribe said.

By the way…

Lawrence Tribe is an American constitutional scholar and the Carl M. Loeb University Professor at the Harvard Law School. A longstanding proponent of liberal jurisprudence, in 2001 Tribe helped found the American Constitution Society a supposed liberal counterweight to the conservative Federalist Society and was long considered a possible Supreme Court nominee by a Democratic administration.

This situation has me singing an old Blood, Sweat, and Tears song: Spinning wheel got to go ’round…The Attorney General is singing too:

“The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed,” Attorney General Eric Holder wrote in a letter filed with the U.S. Court of Appeals for the 5th Circuit. “The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.”

Methinks Justice Kagan has spilled the beans to her former boss and things aren’t going to go Obama’s way when the Supreme Court’s decision is given.

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